Page 2253 - Week 11 - Tuesday, 31 October 1989
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An employer shall not permit a health and safety representative to have access to information of a confidential medical nature under the control of the employer, being information relating to a person who is or was an employee of the employer, unless -
(a) the person has delivered to the employer a written authority permitting the representative to have access to the information; or
(b) the information is in a form that does not identify the person or enable the identity of the person to be discovered.
There are similar types of provisions in relation to confidentiality of information, especially medical information, in the Act. A penalty of $1,000 for a natural person or $5,000 for a body corporate can be imposed on the employer who permits a safety rep to have information which a safety rep is not entitled to. Yet there is no penalty or no provision on the safety rep if the safety rep gets that information which per se would have to be illegally obtained information; in other words, the employer should not give it to the safety rep - and that is amply covered by this - nor should the safety rep have it. However, the penalty is all one-sided. It is only against the employer. By adding these words it would make both the employer and the safety rep liable in this situation. I would submit that this is even-handed and shows more balance when we are dealing with very confidential material. Accordingly, that is the rationale behind this particular amendment.
MR WHALAN (Minister for Industry, Employment and Education) (9.09): The Government has considerable difficulties with this particular proposal. The amendment raises criminal law difficulties, in that it creates in the one subclause two different offences directed at two different classes of person. If it is amended as proposed, subclause 44(2) would prohibit an employer from allowing a representative access to certain information and, at the same time, would prohibit the representative from having access to that information. The end result is quite confusing. Who actually is subject to the penalties specified at the end of the subclause?
As a matter of policy it is inappropriate to include a measure which qualifies a representative's discretionary powers in a provision which relates to the employer's statutory duties which are enforced by criminal sanctions. The amendment is also unnecessary since clause 43 already limits a representative's access to the information in question.
Amendment negatived.
MR WHALAN (Minister for Industry, Employment and Education) (9.10): I move:
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